FCC Proposes Expansion of Requirements for TV Stations and MVPDs to Provide Audio Description of Video Programming

Last week was a busy one for the FCC, with decisions or proposals on a number of issues that can affect broadcasters, including changes to the EAS rules and proposals for the expansion of video description – the requirements that TV stations carry a certain amount of programming that is accompanied by audio descriptions to explain the visual action to TV station viewers who are blind or otherwise visually impaired. Today, we’ll look at the proposals for expanding the required amount of “video description” required by TV stations.

Under current FCC rules, television stations affiliated with ABC, CBS, Fox and NBC and which are located in the Top 60 US TV markets must carry a minimum of 50 hours of video programming per quarter that is described by accompanying audio descriptions of the on-air visual action. These descriptions are usually broadcast on the station’s secondary audio programming (“SAP”) channel, often used for foreign language translations of programming. These SAP channels are also used for the required audio transmission of video alert warnings that occur outside of news programs (see our article about that requirement for emergency information, like video crawls during entertainment programming, to be translated into audio and broadcast on these SAP channels, here and here). Qualifying programming must either be in prime time or programming addressed to children. The rules also require that TV stations in all markets pass through network programming with such audio descriptions if those stations are technically able to do so. The FCC notes that, given the requirement for emergency information on SAP channels, all TV stations should now have that ability to pass through network programming with audio description of the video programming. The FCC now proposes to further expand the obligations of TV broadcasters to do audio descriptions of video programming that they air.

Note that these rules also apply to cable and satellite television operators. MVPD systems with 50,000 or more subscribers must also pass through 50 hours per quarter of audio described video programming from each of the Top 5 networks that they carry – currently USA, TNT, TBS, History, and the Disney Channel.

Specifically, the Notice of Proposed Rulemaking adopted last week proposes a number of changes to the rules, including the following:

• An increase in the required amount of video-described programming on each included network carried by a covered broadcast station or from a covered network on an MVPD from 50 hours per calendar quarter to 87.5 hours, roughly 6.75 hours each week (in connection with this question, the FCC asks if any covered network would have difficulty finding that much prime time or children’s programming to be described, or if, perhaps, some part of the expanded obligations could be met by non-prime time programming);
• Expansion of the covered networks from four broadcast and five non-broadcast networks to five broadcast and ten non-broadcast networks (the FCC noted that the big four broadcast networks will always be included in the requirement, even if one should no longer be a top 4 rated network and thus, theoretically the number of covered networks could actually be even higher than 5 depending on how ratings change over time);
• Adoption of a “no backslide” rule under which included networks remain subject to the requirements even if they fall out of the top five or top ten ranking;
• Elimination of the requirement that non-broadcast networks must reach 50 percent of households in order to be included (a rule that currently effectively exempts premium channels like HBO);
• Continue to revise the list of included non-broadcast networks every three years;
• Begin an assessment to determine the fifth most popular broadcast network;
• Require a dedicated person or office at each broadcaster with sufficient knowledge to assist consumers in resolving video description problems.

In making these proposals, the FCC tentatively concluded, as required by Congress, that the benefits of this expansion of the video description obligations would exceed their costs. In making that assessment, the FCC weighed the benefits to those who cannot see the action on TV versus the economic costs to the stations of implementing the obligations. In effect, the evaluation is a comparison of the subjective benefits enjoyed by the viewers versus the hard costs to the TV stations. Given that the technology to allow the pass-through of network-described programming is already in place, and that the networks themselves have not complained about the costs of describing the currently required amount of programming, the Commission tentatively concludes that the benefits outweigh the costs.

The FCC also asks for comments on a number of other questions without specifically making a proposal. These questions include:

• What should be the timeline for implementing the proposals advanced in the NPRM;
• Should the FCC adopt a requirement that distributors adopt a system to clearly identify video-described programming in program guides;
• Should the FCC adopt a requirement that video on demand programming include video description if the programming had been carried live initially with video description (similar to the current closed captioning requirement);
• The Commission asks for general information about the state of the market for secondary audio streams, as the rules mandate video description only where it the secondary audio channel is not otherwise being employed by the station or system. The Commission asks whether there are more than 2 audio channels available today so that foreign language programming does not effectively pre-empt the audio descriptions of the video programs; and
• Should the FCC use the term “audio description” rather than the “video description” when discussing these rules (note that we here seem to be using that term to describe the audio description of video programming).

Comments on these proposals are due 30 days after the FCC published the NPRM in the Federal Register. Reply comments are due 60 days after Federal Register publication. So, if you are concerned about these proposals, look to file your comments in the upcoming comment period.